92 Decision Citation: BVA 92-00263
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-37 156 ) DATE
)
)
)
THE ISSUE
Whether new and material evidence establishing service
connection for the cause of the veteran's death has been
submitted.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars
of the United States
ATTORNEY FOR THE BOARD
E. J. McCafferty, Counsel
INTRODUCTION
A Board of Veterans' Appeals decision in May 1989 denied
service connection for the cause of the veteran's death. In
September 1989, a copy of the veteran's autopsy report was
submitted in an attempt to reopen the appellant's claim for
service connection for cause of the veteran's death.
The May 1989 Board of Veterans' Appeals decision denied
service connection for cause of the veteran's death on the
basis that a disability of service origin had not caused the
veteran's death. The veteran's death was found to be due to
coronary artery disease and such was not present during
service or within the applicable presumptive period. It was
noted that organic heart disease was first manifested in
1979, many years after the veteran's discharge from service
in December 1945. The current appeal arises as a result of
the RO's denial of service connection for the cause of the
veteran's death on the basis that new and material evidence
has not been provided.
This matter comes before the Board on appeal from a rating
decision of October 1989 from the St. Paul, Minnesota,
Regional Office (hereinafter RO). The veteran served from
August 1943 to December 1945. The notice of disagreement
was received in October 1989. The statement of the case was
issued in November 1989. The substantive appeal was
received in November 1989. A request for reconsideration of
the 1989 Board of Veterans' Appeals decision was denied by
letter in May 1990. The appellant submitted another
substantive appeal in June 1990 and the appellant's
representative, who had represented her throughout the
appeal, submitted additional argument to the Board in
December 1990. The case was remanded by the Board in a
decision in May 1991 for procedural development based on the
finality of the prior Board of Veterans' Appeals decision.
A supplemental statement of the case, in June 1991,
corrected the procedural deficiency. The case was then
returned to the Board and the appellant's representative
presented additional written argument in August 1991. The
case is now ready for further appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO committed error in not
granting service connection for cause of the veteran's death
because it did not take into account the findings of the
autopsy report which she has just recently submitted in
support of her claim. It is contended that the Board's 1989
decision was an error as it did not have the benefit of the
autopsy report at that time.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the preponderance of the evidence
is against the claim for service connection for cause of the
veteran's death.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of the instant appeal has been obtained by the
RO.
2. Service connection for cause of the veteran's death was
denied by Board of Veterans' Appeals decision in May 1989.
3. Evidence submitted since the 1989 Board decision is
essentially cumulative and redundant and is not so
significant, when considered with evidence previously
assembled, that it must be considered in order to fairly
decide the merits of the claim.
CONCLUSION OF LAW
Inasmuch as no new and material evidence has been submitted
in association with the reopened claim, the final prior
Board of Veterans' Appeals decision of May 1989 denying
service connection for cause of the veteran's death stands
and the claim has not been reopened. 38 U.S.C. § 7104
(1989) (formerly 38 U.S.C. § 4004); 38 C.F.R. § 19.194.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The primary question for consideration is whether new and
material evidence has been submitted which would allow for a
reopening of the claim for service connection for cause of
the veteran's death. We note that the only evidence
submitted since the prior Board decision includes the
appellant's reiteration of her contentions, which have
previously been considered, and a copy of an autopsy report
which was not of record at the time of the prior Board
decision. While the autopsy report is new, it is not
material, in that in the prior Board decision the cause of
the veteran's death was factually determined to be due to
cardiovascular disease, and the submitted autopsy report
merely confirms the findings in that decision. While the
autopsy report is more elaborative and provides more detail,
it does not affect the basic factual determination in the
prior Board decision that the veteran's death was due to
cardiovascular disease. In essence, this evidence is new,
but is not material, in that it fails to bear directly and
substantially on the issue of service connection for cause
of the veteran's death. Since new and material evidence has
not been submitted tending to show that the veteran's death
was due to disability of service origin, the appeal must be
denied. The Board finds that the negative evidence out-
weighs the positive evidence in this case and that the
appellant has not satisfied the burden of proof required for
a favorable action on appeal.
(NOTE: The section numbers of title 38, United States Code,
were changed in 1991. The new section numbers are given
above, followed, in parentheses, by "formerly 38 U.S.C." and
the old section numbers in effect prior to the 1991
revisions.)
ORDER
Service connection for cause of the veteran's death is
denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
STEPHEN A. JONES
BRUCE E. HYMAN
*38 U.S.C. 7102(a)(2)(A) (formerly 38 U.S.C. 4002(a)(2)(A))
permits a Board of Veterans' Appeals Section, upon direction
of the Chairman of the Board, to proceed with the
transaction of business without awaiting assignment of an
additional Member to the Section when the Section is
composed of fewer than three Members due to absence of a
Member, vacancy on the Board or inability of the Member
assigned to the Section to serve on the panel. The Chairman
has directed that the Section proceed with the transaction
of business, including the issuance of decisions, without
awaiting the assignment of a third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. 7266 (formerly
38 U.S.C. 4066), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or
benefits, sought on appeal is appealable to the United
States Court of Veterans Appeals within 120 days from the
date of mailing of notice of the decision, provided that a
Notice of Disagreement concerning an issue which was before
the Board was filed with the agency of original jurisdiction
on or after November 18, 1988 (see sec. 402 of the Veterans'
Judicial Review Act (Pub. L. 100-687)). The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have
received is your notice of the action taken on your appeal
by the Board of Veterans' Appeals.